Charles Alford and Mary Lou Alford v. Robert Thomas McKeithen, EOG Resources, Inc. and Central Texas Land Services

ACCEPTED 12-14-00262-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/10/2015 3:09:49 PM CATHY LUSK CLERK No. 12-14-00262-CV FILED IN in the 12th COURT OF APPEALS Twelfth Court of Appeals TYLER, TEXAS 7/10/2015 3:09:49 PM Tyler, Texas CATHY S. LUSK Clerk Charles and Mary Lou Alford, Appellants, v. Robert Thomas McKeithen; EOG Resources, Inc.; and Central Texas Land Services, Appellees. Appealed from the District Court of San Augustine County, Texas Appellee’s Brief of EOG and Central Texas Land Services Jason R. Mills Bar No. 24041494 Graham K. Simms Bar No. 24060610 Joshua C. Ashley Bar No. 24078161 Freeman Mills PC Oral Argument 110 N. College, Ste. 1400 Conditionally Requested Tyler, Texas 75702 903.592.7755 phone 903.592.7787 fax jmills@freemanmillspc.com gsimms@freemanmillspc.com jashley@freemanmillspc.com Brief of Appellee EOG Res. & Cent. Tex. Land Servs. i PARTIES & COUNSEL Appellant: Charles and Mary Lou Alford Appellant’s Counsel: Tom Rorie (trial & appellate) Attorney at Law 210 North Street Nacogdoches, Texas 75961 936.559.1188 phone 936.559.0099 fax _____________________________________________ Appellee: Robert Thomas McKeithen Appellee’s Counsel: Noel D. Cooper (trial & appellate) Law Ofﬁces of Noel D. Cooper 117 North Street, Ste. 2 Nacogdoches, Texas 75961 936.564.9000 phone 936.715.6022 fax Bill McWhorter Bill McWhorter & Associates 119 North Street, Ste. A Nacogdoches, Texas 75961–5200 936.564.2676 phone 936.564.6455 fax Appellee: EOG Resources, Inc. Central Texas Land Services Appellees’ Counsel: Jason R. Mills (trial & appellate) Graham K. Simms Joshua C. Ashley Freeman Mills PC 110 North College, Ste. 1400 Tyler, Texas 75702 903.592.7755 phone 936.592.7787 fax Brief of Appellee EOG Res. & Cent. Tex. Land Servs. ii CONTENTS Parties & Counsel ........................................................................................ ii Contents ..................................................................................................... iii Authorities ....................................................................................................v Statement Regarding Oral Argument ......................................................... viii Issues ........................................................................................................... ix Introduction .................................................................................................. 1 Facts ............................................................................................................. 2 A. In 2003, the Alfords bought the Jessups’ pasture and home site. .........2 B. No one mentioned minerals in the handshake deal. .............................2 C. The deed the Alfords were shown at closing contains a mineral reservation in Exhibit A, but the Alfords did not read it. .....................3 D. The Alfords sue nearly a decade later, seeking title through the interpretation of the deed. ................................................................... 3 E. The trial court rules that the deed is ambiguous, and the jury ﬁnds that the Alfords do not have title to the minerals and are not entitled to reformation. ...................................................................... 4 Summary of the Argument........................................................................... 4 Argument..................................................................................................... 6 A. The trial court rightly held that the Alfords’ deed is ambiguous. .........7 1. A deed is ambiguous when its meaning is uncertain and doubtful, or when the deed is reasonably susceptible to more than one meaning. ........7 2. The Alfords’ deed is ambiguous because the eﬀect of the mineral reservation is at best unclear and there are two reasonable interpretations of the deed. .............................................................. 10 a. Because the Alfords and the Jessups did not discuss minerals when negotiating the deed, the deed’s circumstances do not aﬀect the ambiguity analysis. ............................................................ 10 b. The eﬀect of the mineral reservation in the deed is at best unclear, and there are two reasonable interpretations of the deed. ............................................................................................... 10 Brief of Appellee EOG Res. & Cent. Tex. Land Servs. iii i. The Alfords’ deed should not be construed against the grantors because both parties had an equal opportunity to control the contents of the deed and the Alfords admit that they did not read the whole deed before signing. ........................ 13 ii. The Alfords’ nonbinding cases on incorporation by reference do not render EOG’s interpretation of the deed unreasonable. ............................................................................... 16 B. The Alfords’ attempt to seek title through the interpretation of a voidable deed is time-barred because they waited nearly ten years to sue. ...............................................................................................20 C. Even if the Alfords have title, the Court should aﬃrm the take- nothing judgment in EOG’s favor because the Alfords did not present suﬃcient evidence of damages. ............................................. 22 1. There is no basis in this case for a remand on damages. ...................... 23 2. The Court should enter a take-nothing judgment on the Alfords’ damages, because the Alfords did not present suﬃcient evidence of damages. ....................................................................................... 24 Conclusion .................................................................................................. 25 Certiﬁcate of Compliance ........................................................................... 27 Certiﬁcate of Service................................................................................... 27 Appendix .................................................................................................... 28 Brief of Appellee EOG Res. & Cent. Tex. Land Servs. iv AUTHORITIES Cases Alford v. Kuhlman Elec. Corp., 716 F.3d 909 (5th Cir. 2013) .................................................................... 17 Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.) ..... 13, 14 Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181 (Tex. App.—Dallas 2013, no pet.) ....................... 13, 19, 20 Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) .......................................................... 5, 7, 8, 10 Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........ 20, 22 Dupnik v. Hermis, No. 04-12-00417-CV, 2013 WL 979199 (Tex. App.—San Antonio Mar. 13, 2013, pet. denied) ............................................................... 20, 21 Ford Motor Co. v. Castillo, 444 S.W.3d 616 (Tex. 2014) .................................................................... 15 Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615 (Tex. 2007)..................................................................... 21 Foster Wheeler Ener� Corp. v. An Ning Jiang MV, 383 F.3d 349 (5th Cir. 2004) ................................................................... 17 Glidden Co. v. CDNE, Inc., No. 12-09-00283, 2011 WL 686286 (Tex. App.—Tyler Feb. 28, 2011, no pet.) ........................................................................................... 9 Guerini Stone Co. v. P.J. Carlin Constr. Co., 240 U.S. 264 (1916) ................................................................................ 16 Hill & Combs v. First Nat’l Bank, 139 F.2d 740 (5th Cir. 1944) .................................................................... 17 Brief of Appellee EOG Res. & Cent. Tex. Land Servs. v J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ............................................................. 7, 8, 11 Koepke v. Martinez, 84 S.W.3d 393 (Tex. App.—Corpus Christi 2002, pet. denied) ............... 22 Larson v. Cactus Util. Co., 730 S.W.2d 640 (Tex. 1987) .................................................................... 23 McBride v. Hutson, 306 S.W.2d 888 (Tex. 1957) .................................................................... 14 Oryx Ener� Co. v. Shelton, 942 S.W.2d 637 (Tex. App.—Tyler 1996, no writ) ................................... 24 Owen v. Hendricks, 433 S.W.2d 164 (Tex. 1968)................................................................ 11, 16 Poag v. Flories, 317 S.W.3d 820 (Tex. App.—Fort Worth 2010, pet. denied) ............. 20, 21 Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805 (Tex. 2009) (per curiam) ................................................ 9 Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc., 619 F.2d 374 (5th Cir. 1980) .................................................................... 17 RSUI Indemn. Co. v. The Lynd Co., No. 13-0080, 2015 WL 2194201 (Tex. May 8, 2015) .................................. 7 Slaughter v. Qualls, 162 S.W.2d 671 (Tex. 1942) ..................................................................... 21 Sullivan v. City of Galveston, 17 S.W.2d 478 (Tex. Civ. App.—Galveston 1928), aﬀ’d by 34 S.W.2d 808 (Tex. Comm’n App. 1931, judgm’t adopted) ............................... 17, 18 Sullivan v. City of Galveston, 34 S.W.2d 808 (Tex. Comm’n App. 1931, judgm’t adopted) ................... 18 Brief of Appellee EOG Res. & Cent. Tex. Land Servs. vi Tribble & Stephens Co. v. RGM Constructors, L.P., 154 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).............................................................................................. 18, 19 Other Authorities 28 Tex. Jur. 3d Damages § 222 ..................................................................... 24 Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction 24 Tex. Tech L. Rev. 1 (1993).................................................................. 14 Rules Tex. R. App. P. 43.3 ..................................................................................... 23 Tex. R. App. P. 44.1 ..................................................................................... 24 Brief of Appellee EOG Res. & Cent. Tex. Land Servs. vii STATEMENT REGARDING ORAL ARGUMENT Appellee believes the decisional process of the Court will not be signiﬁ- cantly aided by oral argument. But if the Court grants Appellants’ request for oral argument, Appellee requests the opportunity to respond in oral argu- ment. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. viii ISSUES 1. Deed interpretation. A deed is ambiguous when its meaning is uncertain or doubtful, or when the deed is reasonably susceptible to more than one meaning. The Alfords’ deed states that the property being conveyed is “more particularly described by metes and bounds on Exhibit ‘A’, attached hereto,” and the metes-and-bounds description included a mineral reserva- tion. But the deed also has a section labeled “Reservations from conveyance and Warranty,” that describes a reservation of a life estate. Was the trial court wrong to conclude that the deed was ambiguous regarding the mineral reservation? 2. Limitations. A grantee seeking title through the interpretation of a voida- ble deed must sue within four years of the deed’s execution. In 2012, the Al- fords sued for title through the interpretation of a voidable 2003 deed. Is the Alfords’ suit time-barred? 3. Damages. The burden is on the plaintiﬀ to establish its damages with rea- sonable certainty to enable a jury to compute them. The only basis given by the Alfords for computing their damages is a single royalty check to McKei- then. Neither the Alfords’ lease nor McKeithen’s was in evidence. Does the check to McKeithen under one lease enable the jury to compute the Alfords’ damages under a diﬀerent lease with unknown terms? Brief of Appellee EOG Res. & Cent. Tex. Land Servs. ix INTRODUCTION Having lost in the trial court because the mineral reservation in their deed was intentional and not the product of mutual mistake, and because, even if the reservation was a mistake, they failed to exercise due diligence in reading their deed, the Alfords seek to push the reset button. The Alfords now argue that there never should have been a trial—that, as a matter of law, the min- eral reservation attached to their deed unambiguously is not part of the deed. But the trial court and the jury were right to ﬁnd: (1) that the deed was ambiguous; (2) that the mineral reservation was part of the deed; (3) that the inclusion of the mineral reservation was not a mutual mistake1; and (4) that the Alfords were not diligent in reading their deed. The Alfords focus their appeal entirely on ambiguity: they say the trial court erred because, as a matter of law, the mineral reservation is unambigu- ously not part of the deed. The two grounds for the Alfords’ argument are an inapplicable rule of construction and a fractured line of nonbinding and inap- plicable cases discussing how one document may incorporate another. Assuming the Alfords’ cases are correct, the Alfords’ interpretation of the deed may be reasonable (even though no one in this case except the Alfords has adopted it so far). But the question is not whether the Alfords’ interpre- tation is reasonable; the question is whether EOG and McKeithen’s view is 1 Despite the jury’s ﬁnding that there was no mutual mistake, the Alfords state in their brief that it “is clear” that the inclusion of the mineral reservation was a mistake. Alfords’ Br. at 2. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 1 /28 unreasonable. If EOG and McKeithen’s view is not unreasonable, then the deed is ambiguous, and the trial court’s judgment must stand. FACTS A. In 2003, the Alfords bought the Jessups’ pasture and home site. The Alfords leased the Jessups’ 117-acre pasture for several years before buying the pasture, along with the Jessups’ 2-acre home site, in 2003. 2 The Alfords bought the land for an $80,000 note payable to the Jessups over eight years with no interest. 3 B. No one mentioned minerals in the handshake deal. The purchase was basically a handshake deal. 4 Ms. Alford doesn’t think mineral rights were ever mentioned. 5 That makes sense because Ms. Alford admits that minerals were never part of the agreement. 6 (The Alfords and the Jessups did, however, discuss a life estate to the Jessups in the home site. 7) The Alfords would have bought the property with or without the minerals. 8 2 3RR17, 22. 3 3RR19, 20. 4 3RR56 5 3RR20; 3RR56. 6 3RR53. 7 3RR22. 8 3RR53. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 2 /28 C. The deed the Alfords were shown at closing contains a mineral reservation in Exhibit A, but the Alfords did not read it. When the Alfords got to the title company for the closing, someone at the title company went over the terms of the conveyance with Ms. Alford.9 Ms. Alford is sure she saw Exhibit A to the deed (the exhibit with the prop- erty description containing the mineral reservation) at the title company, but she admits that she didn’t read it. 10 Mr. Alford didn’t read Exhibit A either. 11 D. The Alfords sue nearly a decade later, seeking title through the interpretation of the deed. In 2012, nearly a decade after signing the deed, the Alfords ﬁled suit seek- ing a judgment declaring their title to 50% of the mineral rights under the pas- ture, or for reformation of the deed based on mutual mistake. 12 EOG was joined because, even though EOG has leases from both the Alfords and McKeithen, EOG had paid McKeithen royalties that the Alfords now claim should have gone to them. 13 The Alfords moved for summary judgment on deed interpretation, asking the court to declare the mineral reservation to be unambiguously not part of the deed. 14 The trial court denied that motion, and the Alfords re-urged the 9 3RR29. 10 3RR30. 11 3RR86. 12 1CR7-9. 13 All references to EOG in this brief also include Central Texas Land Services. 14 2CR110. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 3 /28 issue just before trial in a “Motion to Construe Document.”15 The Alfords also ﬁled a supplemental petition alleging that the deed is ambiguous. 16 E. The trial court rules that the deed is ambiguous, and the jury ﬁnds that the Alfords do not have title to the minerals and are not entitled to reformation. The trial court ruled that the deed was ambiguous. 17 The jury found that the Alfords did not have title to the minerals, that the Alfords were not enti- tled to reformation based on mutual mistake, and that the Alfords were not diligent in reviewing their deed. 18 The Alfords now argue that the trial court erred in ﬁnding the deed am- biguous. SUMMARY OF THE ARGUMENT This case is a poor vessel for “testing the limits of incorporation.” 19 The Court need not trouble itself with the Alfords’ complicated theory of incorporation cobbled together from disparate federal-court and state-court opinions. The trial court ruled that the deed in this case was ambiguous. 20 Thus, the interpretation of the deed was a question for the jury, and the Alfords 15 3CR87, 118. 16 3CR125. 17 1Supp. CR4. 18 2Supp. CR8-10. 19 Alfords’ Brief at 2. 20 1 Supp. CR4. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 4 /28 have not challenged the jury’s ﬁndings. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) (interpretation of an ambiguous instrument is a fact issue). The trial court did not err in ruling that the deed was ambiguous. A deed is ambiguous when its meaning is uncertain and doubtful or the deed is reasonably susceptible to more than one meaning. Id. at 393. The Alfords’ deed states that the property being conveyed is “more particularly described by metes and bounds on Exhibit ‘A’ attached hereto,” and the metes-and- bounds description includes a mineral reservation. 21 Does the deed contain a mineral reservation? Maybe. The Alfords’ complicated incorporation law just goes to show that the deed is ambiguous. Of course it’s reasonably possible that the deed incorporated Exhibit A only for the part of Exhibit A that strictly deﬁnes the metes and bounds. But it’s equally within reason that the mineral reservation included in the metes-and-bounds description (in the same font and text block) was also incorporated: after all, the reservation was part of the metes and bounds, and the deed language referring to Exhibit A is not clear about what is incorporated. The Court should therefore aﬃrm the trial court’s ruling that the deed was ambiguous. On top of that, there are two more reasons to aﬃrm. One, under Texas law, the Alfords had four years to sue seeking title through the construction 21 App. A, Deed. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 5 /28 of a voidable deed. The Alfords, after failing to read their deed before signing, waited nearly a decade to sue. Their claim is therefore time-barred. And two, even if the Court ﬁnds that the Alfords have title, the Alfords still have not proved that they are owed damages by EOG. The only evidence of damages oﬀered by the Alfords was a royalty check from EOG to McKeithen, the other alleged owner of the minerals at issue. But the Alfords have not shown how the check to McKeithen provides a legal measure of the Alfords’ damages. Therefore, even if the Court ﬁnds that the Alfords have title, the Court should aﬃrm the take-nothing judgment in favor of EOG. ARGUMENT The Court should aﬃrm the trial court’s judgment in EOG’s favor for three reasons. First, the trial court correctly determined that the Alfords’ deed was am- biguous. Even if the Alfords’ interpretation of the deed is reasonable, that still leaves the deed ambiguous, because EOG’s interpretation is also reason- able. And the Alfords have not challenged the fact issue of the ambiguous deed’s interpretation. Second, the Alfords’ suit for title through a voidable deed is time-barred because the Alfords waited nearly a decade to sue. And third, even if the Court finds that the Alfords own the minerals, the Court should still affirm the take-nothing judgment in EOG’s favor because the Alfords did not produce sufficient evidence of damages due from EOG. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 6 /28 A. The trial court rightly held that the Alfords’ deed is ambiguous. If the Court aﬃrms that the deed is ambiguous, that is the end of the ap- pellate analysis. The reason is that while the Alfords have challenged the trial court’s predicate ﬁnding of ambiguity, the Alfords have not challenged the jury’s factual ﬁnding that the mineral reservation was part of the deed. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) (interpretation of an ambigu- ous instrument is a fact issue). So if the deed is ambiguous, then the jury’s ﬁnding that the mineral reservation was part of the deed must be aﬃrmed. And the deed is ambiguous. 1. A deed is ambiguous when its meaning is uncertain and doubtful, or when the deed is reasonably susceptible to more than one meaning. When interpreting documents, the court “examine[s] and consider[s] the entire writing in an eﬀort to harmonize and give eﬀect to all the provi- sions…so that none will be rendered meaningless.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). A document is unambiguous “if it can be given a deﬁnite or certain legal meaning.” Id. at 229. But if its meaning is uncertain and doubtful, or if it is reasonably susceptible to more than one meaning, then the document is am- biguous. Id.; Coker, 650 S.W.2d at 393; see RSUI Indemn. Co. v. The Lynd Co., No. 13-0080, 2015 WL 2194201, at *3 (Tex. May 8, 2015) (“[I]f both con- structions present reasonable interpretations of the [contract]’s language, we must conclude that the [contract] is ambiguous.”). Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 7 /28 The court may look at the circumstances of the document’s formation when deciding ambiguity. Coker, 650 S.W.2d at 394. Whether a document is ambiguous is a question of law; but once a document is found ambiguous, its interpretation is a question of fact. Webster, 128 S.W.3d at 229. Several cases in the Supreme Court and this Court illustrate when a docu- ment is ambiguous. In J.M. Davidson, Inc. v. Webster, the Supreme Court found a document ambiguous because it was unclear how two provisions in the document re- lated to one another. 128 S.W.3d at 229. The one-page document, entitled “Alternative Dispute Resolution Policy” and “Employment Application Lan- guage,” stated in one paragraph that the employee agreed to arbitrate all em- ployment-related disputes, and in a later paragraph that the employer “re- serves the right to unilaterally abolish or modify any personnel policy without prior notice.” Id. at 225–26. The Court could not give the document a deﬁnite meaning because it was unclear whether the employer’s right to unilaterally modify “personnel poli- cies” included the right to terminate the arbitration agreement, thus render- ing the arbitration agreement illusory and nonbinding. Id. at 229. Because the Court could not interpret the document “by reading the agreement’s terms,” the Court found the document ambiguous. (The Court also noted that the court of appeals and even the Supreme Court was divided on how to inter- pret the document. Id. at 229–31.) Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 8 /28 In Progressive Cnty. Mut. Ins. Co. v. Kelley, the court of appeals found that two separate insurance documents unambiguously constituted two separate insurance policies, and the Supreme Court reversed, ﬁnding that it was am- biguous whether the documents created one policy or two. 284 S.W.3d 805 (Tex. 2009) (per curiam). Although the documents had separate policy num- bers, the second document referred to a “multi-car discount” but only listed one car (the ﬁrst document listed four cars). Id. at 807. The Supreme Court, ﬁnding “some ambiguity” on that basis, considered parol evidence to inter- pret the parties’ understanding, but still concluded that their intent was am- biguous, and remanded. Id. at 807-08. Finally, in Glidden Co. v. CDNE, Inc., No. 12-09-00283, 2011 WL 686286 (Tex. App.—Tyler Feb. 28, 2011, no pet.), this Court aﬃrmed the trial court’s award of contract damages based on one deﬁnition of “costs” over another, ﬁnding that the contract was ambiguous about the meaning of that term. Id. at *4. The Court considered the dictionary deﬁnition of “costs” and how the term was used in the parties’ agreement, and determined that “the term ‘costs’ is reasonably susceptible to more than one meaning.” Id. The Court therefore held the contract ambiguous, and found that the evi- dence supported the trial court’s fact ﬁnding on its interpretation. Id. Like the documents in these cases, the Alfords’ deed is also ambiguous. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 9 /28 2. The Alfords’ deed is ambiguous because the eﬀect of the mineral reservation is at best unclear and there are two reasonable interpretations of the deed. Even if the Alfords’ interpretation of the deed is reasonable, the deed is ambiguous because EOG’s interpretation is equally reasonable. a. Because the Alfords and the Jessups did not discuss minerals when negotiating the deed, the deed’s circumstances do not aﬀect the ambiguity analysis. While a document’s circumstances are part of the ambiguity analysis, Coker, 650 S.W.2d at 394, here the circumstances do not push the analysis one way or the other. The reason is that, by Ms. Alford’s admission, the min- erals were never mentioned when the deed was negotiated. 22 Thus, the cir- cumstances here are silent. b. The eﬀect of the mineral reservation in the deed is at best unclear, and there are two reasonable interpretations of the deed. The Alfords’ deed, after describing the property by reference to an earlier deed, states that the property is “more particularly described by metes and bounds on Exhibit ‘A’ attached hereto.” 23 The tract at issue is tract one in the deed. And the description of tract one in Exhibit A includes, in the same text block and font as the metes-and-bounds description, a mineral reservation. 24 The metes-and-bounds description of tract two does not include a mineral 22 3RR20. 23 App. A, Deed. 24 App. A, Deed. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 10 /28 reservation. 25 But a life-estate reservation in tract two is stated on the face of the deed.26 One interpretation of the deed—the one urged by EOG and McKeithen and found by the jury—is that the reference to Exhibit A is not limited to a single purpose, and so the mineral reservation is part of the deed. The deed refers to Exhibit A, relies on Exhibit A, and never states that Exhibit A is at- tached only for a certain purpose. 27 (The deed does not state, as the Alfords claim in their brief, that the parties “were attaching Exhibit A for the sole purpose of providing a metes and bounds description.” 28) In support of EOG and McKeithen’s view is established contract law, un- der which all parts of a document are to be given meaning, and none are to be rendered meaningless. J.M. Davidson, Inc., 128 S.W.3d at 229. EOG’s view eﬀectuates the mineral reservation, while the Alfords’ view nulliﬁes it. See Dupnik v. Hermis, No. 04-12-00417, 2013 WL 979199, at *5 (Tex. App.—San Antonio Mar. 13, 2013, pet. denied) (ﬁnding that a reservation of “none” on the face of a deed, combined with the phrase “surface only” in the attached property description, unambiguously reserved the mineral estate). Another point in support of EOG and McKeithen’s view is the long line of Texas cases, including Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex. 1968), 25 App. A, Deed. 26 App. A, Deed. 27 App. A, Deed. 28 Alfords’ Br. at 7. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 11 /28 stating that the “language used [to incorporate another document] is not im- portant provided the document signed…plainly refers to another writing.” The mineral reservation in Exhibit A meets the Owen standard for incorpora- tion (the deed “plainly refers” to Exhibit A), and is therefore part of the deed. The Alfords make much of the fact that the only reservation stated on the face of the deed was a life estate in tract two (the home site), 29 but that makes sense considering that a life estate was not already included in the metes-and- bounds description for tract two on Exhibit A. The parties did not have to re- peat a mineral reservation for tract one on the face of the deed because the reservation was already included on Exhibit A. And as for having the parties initial the life-estate reservation, that too makes sense: the Jessups presuma- bly cared much more about conﬁrming the reservation of a life estate in their home than they did about a mineral estate that couldn’t keep the rain oﬀ their backs. The other interpretation of the deed—the one urged by the Alfords—is that the deed incorporates Exhibit A only for the metes and bounds descrip- tion (without the mineral reservation), and so the mineral reservation is not part of the deed. The points in favor of this view are that, while the deed does not expressly limit its incorporation of Exhibit A, the deed does refer to Exhibit A in the context of a metes-and bounds-description. Buttressing this 29 Id. at 8–9. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 12 /28 view is the line of mostly federal cases (with a few state court-of-appeals cases) seeming to go beyond Owen in discussing the incorporation of docu- ments for a narrow purpose. See Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.). Both of these views are reasonable, and therefore the deed is ambiguous. The Alfords, however, argue that two things make EOG’s interpretation un- reasonable: (1) the rule of construing reservations and deeds against the gran- tor; and (2) the law of incorporation of documents. The Alfords are wrong that these points make EOG’s interpretation unreasonable. i. The Alfords’ deed should not be construed against the grantors because both parties had an equal opportunity to control the contents of the deed and the Alfords admit that they did not read the whole deed before signing. The Alfords argue that the familiar rule of construing reservations and deeds against the grantor requires favoring the Alfords’ interpretation over EOG’s. 30 There are two reasons why the Alfords are wrong. First, this rule of construction does not apply without a predicate ﬁnding of ambiguity. See Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818, 824 (Tex. Civ. App.—Houston 1957, writ ref’d n.r.e.) (citation and quotation omitted) (“[The rule of strict construction against the grantor] is not applicable in the absence of ambiguity.”); but see Bruce M. Kramer, The Sisyphean Task of In- terpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction 30 Alfords’ Br. at 4. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 13 /28 24 Tex. Tech L. Rev. 1, 108–111 (1993) (questioning the requirement of re- quiring ambiguity before construing against the drafter). The Alfords argue that their deed is unambiguous, so under their view this rule of construction cannot apply here. (The Alfords are not challenging the jury’s interpretation of the deed.) Second, the Alfords ignore the rationale of the “construe against the gran- tor” rule, and the rationale does not apply here. The rule “is never used as a hypercritical and overly literal tool,” as the Alfords want to use it. Arnold, 307 S.W.2d at 824 (quotation and citation omitted). The rule has a common- sense purpose: “The underlying rationale for this canon is that the scrivener, who is usually the grantor, should be responsible for the lack of clarity in the use of the language.” Kramer, supra at 116. Thus, “[i]n cases where…both parties are equally responsible for the drafting of the instrument, this canon should not apply.” Id. (citing McBride v. Hutson, 306 S.W.2d 888, 891–92 (Tex. 1957) (construing instrument in favor of grantor when drafted by grantee)). Therefore, it’s important to know who drafted the deed in a particular case. Here, an assistant at the title company prepared the closing documents, and they were reviewed by an attorney there. 31 The assistant, who walks the parties through the closing, testiﬁed that her practice was to go over all the documents with both parties and makes sure everything is correct. 32 She said 31 4RR25, 53. 32 4RR17. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 14 /28 that she would “review all of the information on the document…. Anything that’s on that document, I would review with [the parties].” 33 Asked about “the source of your information to know what to prepare when you prepare the documents,” 34 the assistant said: “The parties of the transaction would come in and give us the information.” 35 The assistant conﬁrmed that this practice was applied in every case, in every situation. 36 So the evidence in this case is that the Alfords had an equal opportunity to contribute to the deed’s contents and to review those contents before sign- ing.37 The real problem is that the Alfords weren’t diligent in reviewing Ex- hibit A before signing the deed. The Alfords’ lack of diligence is not a valid reason for construing the deed against the Jessups. Thus, the “construe against the grantor” rule does not render EOG’s in- terpretation of the deed unreasonable. 33 4RR18. 34 4RR18. 35 4RR18. 36 4RR19. Ms. Alford did testify that the deed was already prepared when she arrived at the title company, 3RR21–22, but she admits that the assistant went over the terms of the deed with her. 3RR29. And Ms. Alford admits that she held the deed for a few days be- fore ﬁling it, to make sure the Jessups were comfortable with the sale. 3RR32. This implies that during those days the deal was not, in Ms. Alford’s mind, ﬁnished, and thus could be altered. 37 When reviewing the suﬃciency of the evidence supporting a jury verdict, the court “must view the evidence in the light most favorable to the verdict” and “assume jurors made all inferences in favor of the verdict if reasonable minds could, and disregard all other inferences.” Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620–21 (Tex. 2014) (quota- tions and citations omitted) (upholding jury verdict of fraudulent inducement). Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 15 /28 ii. The Alfords’ nonbinding cases on incorporation by reference do not render EOG’s interpretation of the deed unreasonable. The Alfords also argue that the doctrine of incorporation by reference makes their interpretation reasonable and EOG’s interpretation unreasona- ble. 38 The caselaw cited by the Alfords, however, does not support their argu- ment. Here is why. The Alfords admit that there appears to be a split in the cases dealing with incorporation by reference. 39 One line, which the Alfords call the Owen line, after Owen v. Hendricks, says that the incorporation language used is not im- portant so long as one document plainly refers to the other. 433 S.W.2d 164, 166 (Tex. 1968). Here the deed refers to Exhibit A as being “attached hereto,” which, under Owen, would incorporate the mineral reservation be- cause the mineral reservation is on Exhibit A.40 The other line of cases cited by the Alfords begins with a hundred-year- old United States Supreme Court case, Guerini Stone Co. v. P.J. Carlin Con- str. Co., 240 U.S. 264 (1916), and runs through several Fifth Circuit and Texas court-of-appeals cases. 41 This line of cases states that a reference to another document “for a particular purpose” incorporates the document only for that purpose. Id. at 277. The Alfords cite four federal cases and three Texas cases that refer to the Guerini rule. None of these cases controls here. 38 Alfords’ Br. at 2, 4–6. 39 Alfords’ Br. at 4–5. 40 App. A, Deed. 41 Alfords’ Br. at 5–6. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 16 /28 Only one of the federal cases cited by the Alfords arises under Texas law. But that case, Hill & Combs v. First Nat’l Bank, 139 F.2d 740 (5th Cir. 1944), did not cite any Texas law on incorporation, and aﬃrmed a jury verdict on in- terpretation because the contract was ambiguous, which is the result that EOG urges here. Id. at 743. The other three federal cases cited by the Alfords are not relevant either. Each of those cases arose in another state and was governed by other law. See Ralson Purina Co. v. Barge Juneau & Gulf Caribbean Marine Lines, Inc., 619 F.2d 374, 374–75 (5th Cir. 1980) (admiralty case originating in Louisiana involving a federal maritime statute); Foster Wheeler Ener� Corp. v. An Ning Jiang MV, 383 F.3d 349, 358–59 (5th Cir. 2004) (admiralty case originating in Louisiana involving a federal maritime statute and an international maritime agreement); Alford v. Kuhlman Elec. Corp., 716 F.3d 909, 913 (5th Cir. 2013) (contract case originating in Mississippi applying Mississippi law). 42 The ﬁrst Texas case cited by the Alfords is Sullivan v. City of Galveston, 17 S.W.2d 478 (Tex. Civ. App.—Galveston 1928), aﬀ’d by 34 S.W.2d 808 (Tex. Comm’n App. 1931, judgm’t adopted). Sullivan involved two sureties who backed their principal’s obligation to pay a certain rate of interest on a bond issued to the city. Id. at 480–81. The sureties agreed to pay “the rate stipu- lated in [the principal’s] written obligation of even date herewith.” Id. at 480. 42 Each of these federal cases is also distinguishable on the facts and the holdings, but EOG will not discuss those distinctions because it is suﬃcient that the cases do not in- volve Texas law. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 17 /28 But there was no written interest obligation “of even date herewith”—the “written obligation” (a bond to the city) stating the interest rate was dated several months before. Id. at 481. The sureties claimed that their surety obli- gation was therefore void, but the court of appeals found that “it is clear from all the facts and circumstances in evidence that all the parties to the transaction understood what paper was referred to, and that it was referred to only for the purpose of ﬁxing the rate of interest.” Id. at 490. The court went on, citing Guerini but no Texas cases, to note that the outside document had no eﬀect on the referring document other than to supply the interest rate. Id. Apart from not being binding on this Court, Sullivan does not apply here for two reasons. One, Sullivan was based on “all the facts and circum- stances” evidencing the parties’ understanding, not on the particular words of incorporation. So the Guerini reference is merely dicta. And two, the Commission of Appeals opinion in Sullivan (which the Alfords did not cite) relied not on Guerini but on common sense: the interest rate, said the Com- mission of Appeals, “can be…ascertained” without the referenced document because the rate was stated in the city board’s resolution authorizing the bond in the ﬁrst place. 34 S.W.2d at 811–12. Thus, according to the Commis- sion of Appeals, “the fact that the reference was made to a written instru- ment which did not exist becomes immaterial.” Id. at 811. The second Texas case cited generally by the Alfords (without a pin cita- tion or any quoted language) is Tribble & Stephens Co. v. RGM Constructors, L.P., 154 S.W.3d 639 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 18 /28 Tribble was, like Guerini, a construction-contract case. Id. at 663–64. Tribble held that a “ﬂow down” provision in the contractor–subcontractor contract did not as a matter of law incorporate an alternate-dispute-resolution provi- sion of the contractor–owner contract. Id. at 663–64. The court found that “fact issues exist as to the intent of the parties” to bind the subcontractor to the ADR provision. Id. at 669. Thus, this case favors EOG and not the Al- fords. The ﬁnal Texas case cited by the Alfords as support for Guerini is Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181 (Tex. App.— Dallas 2013, no pet.). Dent Zone involved a one-page application for Dent Zone’s “PDR Linx Service Program.” The application said that “Additional beneﬁts, qualiﬁcations, and details of the [program] are available for your re- view at our website: [url].” Id. at 184 n.1. When Dent Zone sued and the Chevrolet dealership objected to Texas jurisdiction, Dent Zone cited a fo- rum-selection clause listed on the website referenced in the application. Id. at 184–85. After citing Texas law on incorporation by reference, including Owen, the court of appeals referred to “the general principal of contract law that refer- ence to a document for a particular purpose incorporates that document only for the speciﬁed purpose.” Id. at 189. For this “general principal,” the court of appeals cited not a single Texas case, but rather a section in Corpus Juris Secundum. Id. at 189. The court of appeals then found that the internet docu- ment was not incorporated into the application for any purpose, but instead Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 19 /28 contained “informative material only, not binding terms and conditions.” Id. at 190. Thus, the “particular purpose” language in Dent Zone is dicta. The court found that there was no incorporation at all. Therefore, the incorporation cases cited by the Alfords do not show that EOG’s interpretation of the deed is unreasonable. B. The Alfords’ attempt to seek title through the interpretation of a voidable deed is time-barred because they waited nearly ten years to sue. In addition to ambiguity, there is another ground for aﬃrmance: limita- tions. 43 EOG and McKeithen pleaded limitations as a defense in the trial court and moved for a directed verdict on limitations. 44 This claim may be decided as a matter of law, because when a claim accrues is a question of law. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). A suit seeking title through the interpretation of a voidable deed must be brought within four years of when the claim accrues. Poag v. Flories, 317 S.W.3d 820, 826 (Tex. App.—Fort Worth 2010, pet. denied) (suit seeking to quiet title through interpretation of deed is barred by four-year statute); Dup- nik v. Hermis, No. 04-12-00417-CV, 2013 WL 979199, at *2–*3 (Tex. App.— San Antonio Mar. 13, 2013, pet. denied) (trespass-to-try-title suit where par- ties sought interpretation of deed is barred by four-year statute). 43 Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that an appellee may, by cross- point, present an additional ground for aﬃrmance). 44 3CR106, 112; 4RR76–87. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 20 /28 A deed is void when it has no legal eﬀect. Poag, 317 S.W.3d at 825–26 (quoting Slaughter v. Qualls, 162 S.W.2d 671, 676 (Tex. 1942)). A deed is void- able when it “operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction has been judicially ascertained and de- clared.” Id. The legal injury caused by a voidable deed occurs when the deed is rec- orded, or, in limited cases, when the ﬂaw is discovered. Id. at 827; Dupnik, 2013 WL 979199, at *4; see also Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007) (recorded instruments in a grantee’s chain of title gener- ally establish an irrebuttable presumption of notice of defects). The Alfords’ deed is voidable, not void, because it admittedly accom- plished a transfer of title to the Alfords: the Alfords received the surface es- tate conveyed in the deed. The Alfords’ deed was recorded in April 2003. 45 The Alfords sued in 2012.46 The Alfords’ claims accrued when they executed and recorded their problematic deed. Poag, 317 S.W.3d at 827. And even if the Alfords’ claims could be tolled by the discovery rule, the discovery rule does not apply here because the Alfords admit that they did not read all of the deed. 47 Dupnik, 2013 WL 979199, at *4. On top of that, the jury found that the Alfords were not diligent.48 45 App. A, Deed. 46 1CR4. 47 3RR30, 86. 48 2Supp. CR10. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 21 /28 The Alfords’ suit is therefore time-barred because they waited nearly ten years to sue. C. Even if the Alfords have title, the Court should aﬃrm the take- nothing judgment in EOG’s favor because the Alfords did not present suﬃcient evidence of damages. Even if the Court ﬁnds that the Alfords, rather than McKeithen, have title to the minerals, the Court should aﬃrm the take-nothing judgment in favor of EOG, because the Alfords have no evidence of damages owed by EOG. 49 The jury did not answer the damages question in the charge because they found that the Alfords did not own the minerals. 50 But EOG moved for a di- rected verdict on the Alfords’ damages. 51 A directed verdict is proper when “the evidence oﬀered on a cause of action is insuﬃcient to raise an issue of fact.” Koepke v. Martinez, 84 S.W.3d 393, 395 (Tex. App.—Corpus Christi 2002, pet. denied). Because the trial court denied EOG’s motion for directed verdict, this Court may review that denial under a legal suﬃciency or no-evi- dence standard. Id. 52 49 This basis for aﬃrmance is being raised under the same authority as EOG’s limita- tions argument: Dean, 999 S.W.2d at 818 (noting that an appellee may, by cross-point, pre- sent an additional ground for aﬃrmance). 50 2Supp. CR8, 12. 51 4RR88. 52 EOG is not required to raise this point as an appellant, because a win on this issue does not increase EOG’s trial-court relief. See Dean, 999 S.W.2d at 818 (noting that an ap- pellee may, by cross-point, present an additional ground for aﬃrmance that does not ex- pand the relief sought). Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 22 /28 1. There is no basis in this case for a remand on damages. The Alfords ask the Court, upon determining the mineral ownership, to remand on the issue of damages for removal of the minerals. But there is no basis for a remand on damages. The Rules of Appellate Procedure state that “[w]hen reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered.” Tex. R. App. P. 43.3; see also Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987) (“If a court of appeals holds that there is no evidence to support a damages verdict, it should render a take nothing judgment as to that amount.”). The only exceptions are when “a remand is necessary for further proceedings” or “the interests of justice require a re- mand for another trial.” Tex. R. App. P. 43.3(a)–(b). If this Court ﬁnds that the Alfords have mineral title, then the Court should render the judgment that the trial court should have rendered. No further proceedings are necessary, because the parties have already tried this case to a verdict on damages. 53 Nor are there any special circumstances in- voking the “interest of justice” exception. Therefore, if the Alfords have title, the question on appeal is what judg- ment the trial court should have rendered on the Alfords’ damages. The an- swer is a take-nothing judgment.54 53 2Supp. CR13. 54 If the Court does remand for a trial on damages, the Court should remand on liabil- ity as well. Tex. R. App. P. 44.1 (“The court may not order a separate trial solely on unliquidated damages if liability is contested.”). Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 23 /28 2. The Court should enter a take-nothing judgment on the Alfords’ damages, because the Alfords did not present suﬃcient evidence of damages. “The burden is on the plaintiﬀ to establish its damages with reasonable certainty to enable a jury to compute them.” Oryx Ener� Co. v. Shelton, 942 S.W.2d 637, 642 (Tex. App.—Tyler 1996, no writ). “A plaintiﬀ must prove, with some degree of certainty, a factual basis to support the amount of dam- ages awarded.” 28 Tex. Jur. 3d Damages § 222. Because EOG owns a mineral lease covering the Alfords’ land, the only damages the Alfords could be entitled to if they own the minerals are unpaid royalties. Apparently recognizing this, the only evidence oﬀered by the Al- fords to show damages is a check from EOG to McKeithen (as guardian of the Jessups’ estate) for $167,000 with the memo: “Royalty Account.” 55 The check does not state what the royalty is attributable to, but McKeithen testi- ﬁed that it was from the Jessups’ property (the property claimed by the Al- fords). 56 The basis for EOG’s directed-verdict motion was that the Alfords put forth no evidence of (1) the amount of production from their claimed miner- als; (2) the revenue produced from the minerals; or (3) their royalty interest in the minerals. 57 Thus, EOG argued, the jury cannot calculate what the Al- fords’ damages are. 58 55 3RR69 at Ex. 13. 56 3RR69. 57 4RR88. 58 4RR88. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 24 /28 The Alfords responded to EOG’s motion by pointing solely to the “amount [EOG] paid McKeithen,” as evidenced by the royalty check.59 But that check cannot enable the jury to compute the Alfords’ damages. The jury cannot compute what the Alfords should have been paid based solely on the check to McKeithen because the Alfords and McKeithen have diﬀerent leases. And neither the Alfords’ lease nor McKeithen’s lease was in- troduced at trial, so the Alfords have not proved that the lease terms under which McKeithen was paid are the same as the lease terms under which the Alfords would be paid if they owned the minerals. 60 Because the Alfords have not given the jury (and thus this Court) a suﬃ- cient factual basis to compute the damages owed to them, the Court should aﬃrm the take-nothing judgment in favor of EOG. CONCLUSION This Court should aﬃrm the trial court’s judgment in EOG’s favor for three reasons. First, the trial court was right to find the Alfords’ deed ambiguous. Even if the Alfords’ interpretation of the deed is reasonable, that still leaves the deed ambiguous, because EOG’s interpretation is also reasonable. And the Alfords have not challenged the jury’s interpretation of the ambiguous deed. 59 4RR88. 60 The Alfords introduced a memorandum of their lease, but the memorandum merely states the primary term of the lease, not the royalty terms. 5RR at Ex. 10. No part of McKeithen’s lease was introduced. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 25 /28 Second, the Alfords’ suit for title through a voidable deed is time-barred because the Alfords waited nearly a decade to sue. And third, even if the Court holds that the Alfords own the minerals, the Court should still affirm the take-nothing judgment in EOG’s favor because the Alfords did not produce sufficient evidence of damages due from EOG. Respectfully submitted, /s/ Jason R. Mills Jason R. Mills Bar No. 24041494 Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 26 /28 CERTIFICATE OF COMPLIANCE Counsel certifies that this brief contains, as counted by MICROSOFT WORD, 6184 words. It was typed in 14-point Equity. Dated: July 10, 2015 /s/ Jason R. Mills Jason R. Mills CERTIFICATE OF SERVICE Counsel certifies that this brief was served on the following parties through e-filing on July 10, 2015. Tom Rorie Attorney at Law 210 North Street Nacogdoches, Texas 75961 936.559.1188 phone 936.559.0099 fax Noel D. Cooper Law Ofﬁces of Noel D. Cooper 117 North Street, Ste. 2 Nacogdoches, Texas 75961 936.564.9000 phone 936.715.6022 fax Bill McWhorter Bill McWhorter & Associates 119 North Street, Ste. A Nacogdoches, Texas 75961–5200 936.564.2676 phone 936.564.6455 fax /s/ Jason R. Mills Jason R. Mills Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 27 /28 APPENDIX 1. Appendix A — Deed, Apr. 25, 2003. Brief of Appellee EOG Res. & Cent. Tex. Land Servs. 28 /28 Appendix A to Appellee’s Brief — Deed, April 25, 2003 •«S X AT«5,*00 W. 01ANA KOVAR, COUNIY ClfRX SANAUGUSnNE CO, TEXAS BY k^/^/AAy jo/m WARRANTY PEEP WITH VENDORS URN Date: Ajttil 25»2003 GrutOK JACK P. JESSUP AND WIFE, ANNIB ELIZABETH JESSUP Grantor's Mallb^ Address (indndlngooBaty)t Route 3,Box484, SanAugutbe, SanAugustine Coun^,Texas 75972 Grantee: CHARLES ALFORD AND WIFE, MARY LOU AUPORD Grantee's Maffing Address Ondudlng couotjO: Route 1.Box 529, San Augustme, San Augostise Cous^, Texas 75972 Cenddaratlon: ' (i) The sum ofTEN AND NO/ICO DOLLARS ($10.00) and other good and vahidile considetations toGianun paid, twR inhand, byGiantee herein, die receipt ofwUdi isIteiefay aeknowled^d; and 9) Anote ofevendate duct isindiepiine^aBxnanof$80,000.00 and isexecutedbyGrantee, p^dile todie orderof Qrannn. It is securedby a vendor'slienteniaed in this deed andby a deed of inixtofevendate fiom Granteeto J. KenMuekeboy, Iknstee. Pn^erty Ondnding any fntprovemenls): ntACTONB: BEING 117.50 acrea of land, silnated on Ctntis Jemqi Survey, about seven nsQes west of dw towu of San Augustme, fax San Augusdne County, XlBXBt, andbeing dieproper^ described inDeed fitnn T.B.Foustatn endwife, hfimde Fountain, C. a Bums andwift. Maty Bmu, and J. S. Jessnp and wift,UnaJesstp, to JaekJessi^, dated May 24.1950. recorded in VoL 105, Pege 498, Deed Records, Sen Augusdne County, Texas, and being more pailieulBify described bymstes and bounds on Biddbit "A" attached heteto. TOACTTWOt BEING 2acres, more orless, and being ad(hat certain tract; lotorparcel ofland, situated inSanAognsdne County, Texas, and being out ofand apart ofdis Curtis Jessnp Survey, about 8ixdles Westofdwtown ofSan Augistine, Texas, and b^ die property described in Deed fiotn J. S. Jessi^(Sharp Jeasup) andwife, UnaJessqi. to J. P. JcBSiqi and wife, Annie EliabediJessie,dated October 17, 1958, recorded in VoL 122, Page 206, Deed Records, SanAugustine County, Texas, sndbeing more partisulailydesaibed bymetes andbounds anE:diibit''A"atta^edhaeto. TRACT THREE: BEINGid ofOrantK8(7ackF.Je3Sup's) undividedinterest in and to 9 aetes of dot eeitain 110.5 sen tract as describedin Deed of Gift fiost Jenetde Jbssiqi Stotts, GlennRay Jessnp end Johnnie DeE Jesst^ Dumesnil, dated June 23, 1982, feootded in VoL235,Page424,DeedRecords, SanAugustiiie County, Texas. ReservattensfiromConvqunce and Warranty: ForGxainor,8 fdiefidl ssesslon, benefit, and use of IVact Two for die lemainderofdielldi ofGrantor, ssalift estate. YVAco ^ Exe^dons to Convsyanee and Warranty: Eiwwnrnti, ii^]la4f>way andpmsatytive ri^ds, wfaeSiei of tecord of not; bU ptesendy recorded restiictioiis, reservations, mveiisiila.ciHidilifliB.oflandBMlBas^fB3iicMlaevefwieMMMt nAeTrtwn1i«n»iwHfl(vmii»y>iv»«i»_ dial Effect Aepnpcity. Grantor, fordiecuosideTadan and sid^ect tothereservationa fiom and exeeptiona toconveyance andwarranty, gwnrta, geUs and conveys to Grantee the property, together with all and sbigubtr the rights and appurtenanses thereto in anywise, belonging, to have and to bold It to Gmtee, Oiantes's heirs, executors, adaaiBiatmton, suooeasora, or assigns forever. Grantor binds Grantor andGrantor's belts, cxecutoia, adndnistiaton, andsnccesseaa to waxraiit andfbiever defend bU and aingular dttproperty toGrantee and Grantee's heirs, executors, adndniittators, successors, and assigns against every person vduniBoever lawfiiUy dahnhig ortoclahndw same oranypart disieof except astothe reservations fiom and excqitlons to conveyance and warranty. The veodor'a lien against and snpexior dde to die propeity ate retained unta each note itescribed isfiiUy paid accoiding to its tenns, at wideh dnm this Deed shall become absolute. When dtecontext requites, singularnouns andpronouns include diephnaL PLAINTIFFS' EXHIBIT 2 LZ THE STATE OF TEXAS COUNTY OF SAN AUGUSTINE ThisiastninienttrosadmowledgedbsfoseinebyJACKP. JESSUP ANDWIFE,ANNIEELIZABETH JESSUP, on this the 25th day ofApril, 2003. oonnisvmjsmn NotuyPi^e Stataedltaia MyComrriMtonBiplfM NOTARY PUBLIC FO PREPARED BY: J. KEN MUCKELROY, ATTORNEY AT LAW, P.C. 104 Souft Btoadmgr, SsaAugustine, Texas 759^ Phone: (936) 275<2304 Pax: (936) 275-2305 AFTER RECORDATION, PLEASE RETURN TO 3. KEN MUCKELROY, ATTORNEY iinirAe:Isndyatup4lfa(d.ol\ev,JKM; TC 3? r U" }K .| Jfaot br pMcer af land attu'atM on. Ourtib Jeaott© aurveS' about aeviin ^^ BlfflSnlM''n?^fcHi®s^w'" of Soii^AuKUBtiria;-Id Sa®-Augqatioe CountyVTexao, j': ««naSk®^f''iJMjhr'"'"' ""T" " "»»H.6T E.S^/b w.coraer'la on vrB.,3ra,N-9 EB5'.vx'8.to thd ninth J2?^? IT £ J68BUP aur*ey oh the Ueat banfe'br a braaoh thla Is • il oSrtai r25'51ii4£ W4 5 ao^e ahrvey bat or thb CUrtia JeBsup aurvey.K.W. •' bSfiwJh £S?«k 44 2w w 2 ?j* 2®® ^foba are gohe.tbenoe abwh the aald sul vre ^^''l^OrB'to'sSski'' J.*®®*®" E.150S^ol vre;Si^anch etSuH.Ie.SOr.W.SO vrB.'7tB.lf?f7f§o'^. 28*' *x»xEXm s, 1 E,7.6 vra? Theftoe ir«S8' 17« 7B vrs»t6 oornbr o'tt' Sbuth bank 2 wS 2 S'2®-i Thehoe up abid creek, Xatise-SO E.184 vra^ 2ad.S.80.30 '• fitb a'Sn ?2 2'2S • ?*^9® y".4th.S.68 Eo70 vrb, Sth.N.sfoo vra. • T^bce S oi .iS"!®.™' S.2S.45 Iron, W.lXTS vra .to stakejtriff, bagljip Southao©fe«>Baak,NeoJper <*^fT 117.5 creek. aorea of innd f'Ij that the pantora 4."° J® 2^ reaervea herein kgreedIn"bytheir and bet«e& own riighttheoneparties haXf ofhereto* all if ktod and chaTector which may be on or under the |;.' other 2?S«2 «?? purpoaa of nlnSng lalXeralB without interference and or of aaalgne drllXlng for oil and hla aaaigna. ir^ l! K * ^TOgF'^oi that oertaln tract, lot •or poroal of Ippd, situated in Sea Augi^Hna County, Soxaa, belag all out Of uid a part of the Ourtia Jeeeup Burvey, ahout Bnilea We8t o;s tSe town of San Ausuetino, Texaa, and beins out of the let. tract doacrlbed in an oil, gaa-W nineral lease enecuted by Sharp Jesspp and wife, to T. W. Blount and W, ?. Haya, reoorded in Volume 92, p. 319 of the Deed fiecord. ofSan Auguatine County, Sexae. boiag known as a 75 aere traet. and being 2 acres of land, and thus deeeribedt BSMHHlHft at a point in the 2BL of said 75 aore, B. 24 V2 deg. Bast 2«0 feet from the HI come, of said 75 acre tract in the B.Boak of Heoipor Creek (now called Becky Creek), 2HBSCB South 2h 1/2 deg, B. with the EEL of said 75 acre tract, 30O feet, 2HBH0B at right anglea to said SBL (approxiaatoly 8. 66 deg. W.) 290 1/2 feet, MBMOB Berth 24 1/2 deg. West parallel with the BBL oXeaid 75 acre tract 500 feet, 7HSH0B at right angles (approximately H. 66 deg. Baat) 290 1/2 feet to the beginning, oontalnlns-2 acrosj store or Iosob • : . .Vv'v.,./.- • ' • ./V . M: •••.: EXHTOIT "A" • i ..''t

Charles Alford and Mary Lou Alford v. Robert Thomas McKeithen, EOG Resources, Inc. and Central Texas Land Services

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